TITLE:  Computer Associates International, Inc., B-292077.2, September 4, 2003
BNUMBER:  B-292077.2
DATE:  September 4, 2003
**********************************************************************
Computer Associates International, Inc., B-292077.2, September 4, 2003

   DOCUMENT FOR PUBLIC RELEASE                                                
The decision issued on the date below was subject to a GAO Protective      
Order.  This redacted version has been approved for public release.        

   Decision
    
Matter of:   Computer Associates International, Inc.
    
File:            B-292077.2
    
Date:              September 4, 2003
    
Claude P. Goddard, Jr., Esq., J. Michael Littlejohn, Esq., J. William
Eshelman, Esq., and Elizabeth M. Gill, Esq., Wickwire Gavin, P.C., and
James M. Black, Esq., Computer Associates International, Inc., for the
protester.
Marion T. Cordova, Esq., Department of Agriculture, for the agency.
Louis A. Chiarella, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
1.  Protester*s argument that the solicitation is defective in that it
fails to set forth the agency*s actual minimum requirements is in essence
a challenge to the evaluation of vendor responses, and thus is premature
where award has not yet been made.
    
2.  Corrective action taken by the agency in response to a suspected
procurement impropriety is unobjectionable where the agency has a
reasonable basis for restricting the scope of revisions that vendors may
make to their quotes, and the agency*s corrective action resolves the
suspected impropriety.
DECISION
    
Computer Associates International, Inc. (CA) protests the terms of request
for quotations (RFQ) No. RFQ-OPPM-3-1007VT, issued by the Office of
Procurement and Property Management, Department of Agriculture (USDA), for
quotes from Federal Supply Schedule (FSS) vendors for *change management*
software.  CA argues that the solicitation is defective in that it fails
to set forth the agency*s minimum requirements, and that the amended
solicitation improperly precludes vendors from revising their technical
quotes to address the agency*s allegedly unstated minimum requirements.
    

   We deny the protest.
    
The RFQ, initially issued on December 13, 2002, requested quotes from
three FSS vendors, including CA, for a change management software product,
to include installation, configuration, training, and maintenance, for use
at the USDA National Finance Center, New Orleans, Louisiana, and the
National Information Technology Center, Kansas City, Missouri.  The
solicitation informed vendors of the various computer platforms and
operating systems upon which the change management software would be
installed, and advised that *[i]t is only essential that the functional
requirements [of the proposed software] be satisfied in the same manner
for each participating platform.*  RFQ at 5.
    
The RFQ contemplated the issuance of a fixed-price purchase order for a
3-year period of performance.  The solicitation also established three
evaluation factors in descending order of importance:  price, technical
merit, and corporate experience.  Award was to be made to the responsible
vendor whose quote conformed to the solicitation and provided the overall
*best value* to the agency, based on consideration of all factors.
    
The agency received three quotes, including a quote from CA, by the
January 6, 2003, closing date.  A technical evaluation team (TET)
evaluated vendors* technical quotes using a numeric rating system. 
Following both the technical and price evaluation of quotes, USDA
determined that the quote of another vendor, Merant/Northrop Grumman
Computing Systems, Inc., represented the best overall value.
    
On March 13, following a debriefing by the agency, CA filed a protest with
our Office, essentially raising three issues:  (1) the agency improperly
evaluated CA*s technical quote, by employing the use of an unstated
minimum requirement for an integrated multiple platform support solution;
(2) the agency improperly evaluated CA*s price quote; and (3) the agency
failed to follow the solicitation*s stated source selection criteria and
failed to make a proper best value determination.  Initial Protest at 2,
8-12.
    
On April 8, the agency notified our Office of its intent to take
corrective action in response to CA*s protest.  Specifically, USDA stated
that its source selection decision had not been documented adequately, and
that the contracting officer should have sought clarification of certain
aspects of CA*s price quote.[1]  Accordingly, the agency stated its intent
to seek clarification from CA regarding its price quote, and once this
clarification was received, to perform a new price/technical tradeoff and
arrive at a new source selection decision.  Letter from USDA to GAO, Apr.
8, 2003.  CA then withdrew its protest in light of the agency*s proposed
corrective action.
    
On May 16, the agency issued amendment No. 1 to the RFQ seeking price
clarifications from all vendors.  The amended solicitation required
vendors to submit detailed, standardized price templates indicating the
software, maintenance, training, and consulting prices being proposed.[2] 
Relevant to this protest, CA asked the contracting officer whether vendors
could also submit revised technical quotes.[3]  Agency Report (AR), Tab H,
CA Questions, May 19, 2003, at 1.  The agency informed vendors that no new
technical quotes would be accepted or evaluated, as the purpose of the
amended solicitation was to clarify and standardize vendors* price
submissions.  On May 29, prior to the date for the submission of revised
price quotes, CA filed this protest.
    
CA first contends that the solicitation is defective because it fails to
set forth the agency*s actual minimum requirements for an integrated
multiple platform software solution.  CA asserts that it is aware of the
existence of an unstated minimum requirement here as a result of the
debriefing it received from USDA after the initial award decision.  CA
argues that it is necessary for the agency to amend the solicitation to
reflect its actual minimum requirements and permit vendors to submit new
price and technical quotes in response thereto.[4]  We find CA*s protest
on this ground to be premature.[5]
    
The key question is whether the protest raises an alleged solicitation
impropriety, which, to be timely, must be filed prior to the time set for
receipt of proposals.  See Bid Protest Regulations, 4 C.F.R. S: 21.2(a)(1)
(2003).  We conclude that it does not.
    
As previously stated, CA contends that the RFQ is defective because it
fails to set forth the agency*s actual minimum requirements (i.e., that
there exists an unstated minimum requirement), the proof of which is
USDA*s evaluation of technical quotes and debriefing statements. 
Notwithstanding protester*s characterization of the solicitation as
defective, CA is not in fact challenging the solicitation itself. 
Instead, CA essentially argues that the agency has unfairly evaluated the
vendors* technical quotes by not acting in accordance with the terms of
the solicitation.  An allegation, like CA*s here, that an agency*s actions
are not consistent with the terms of a solicitation is not a challenge to
the terms of the solicitation, but a challenge to the agency*s actions
leading to an award decision.  Because the agency here has not yet made an
award decision, the protest on this ground is premature.  See Parcel 47C
LLC, B-286324, B-286324.2, Dec. 26, 2000, 2001 CPD P: 44 at 10 n.13
(protests that merely anticipate prejudicial agency action are speculative
and premature).
    
CA argues that its protest is not premature, and that any later-filed
protest of this issue would be untimely, because of the information the
protester now has in its possession regarding the agency*s inaccurately
stated requirements, citing our decision in Allstate Van & Storage, Inc.,
B-247463, May 22, 1992, 92-1 CPD P: 465.  In Allstate, which involved the
procurement of household goods moving services, the protester alleged
after contract award that the solicitation*s estimated quantities did not
accurately reflect the actual quantities that would be required under the
awarded contract, a contention based upon the protester*s experience as
the incumbent contractor.  Our Office determined that because the
protester knew or should have known of the alleged defects in the
solicitation*s estimated quantities, Allstate*s argument that the
awardee*s proposal was materially unbalanced, due to defective government
estimates, was untimely.
    
Our decision in Allstate is inapposite to the circumstances here.  In
Allstate, no agency action, either consistent or inconsistent with the
terms of the solicitation, was required in order for the protester to
possess the information necessary to challenge the apparent improprieties
of the solicitation prior to the time set for receipt of proposals.  By
contrast, CA*s allegation of a defect in the solicitation is entirely
conditional upon the agency taking action (or having taken action)
inconsistent with the solicitation*s stated terms.  Since there has yet to
be an award decision by USDA, CA*s protest that the agency failed to act
in accordance with the terms of the solicitation is premature.
    
CA also protests that the agency*s corrective action taken in response to
its initial protest (i.e., RFQ amendment No. 1) improperly does not allow
vendors to submit revised technical quotes as well as revised price
quotes.  CA argues that just as it is necessary for USDA to amend the RFQ
and notify vendors of the unstated agency requirement for an integrated
multiple platform software solution, it is also necessary for the agency
to permit vendors to submit revised technical quotes addressing this
unstated requirement.  CA also contends that the agency does not otherwise
have a reasonable basis for precluding vendors from submitting revised
technical quotes.  We disagree.
    
Contracting officers in negotiated procurements have broad discretion to
take corrective action where the agency determines that such action is
necessary to ensure a fair and impartial competition.[6]  SMS Data Prods.
Group, Inc., B-280970.4, Jan 29, 1999, 99-1 CPD P: 26 at 2; Patriot
Contract Servs., LLC, et al., B-278276.11
et al., Sept. 22, 1998, 98-2 CPD P: 77 at 4.  An agency*s discretion when
taking corrective action also extends to a decision on the scope of
proposal revisions, and there are circumstances where an agency may
reasonably decide to limit the revisions offerors may make to their
proposals.[7]  See Rel-Tek Sys. & Design, Inc.--Modification of Remedy,
supra; Serv-Air, Inc., B-258243.4, Mar. 3, 1995, 95-1 CPD P: 125 at 2-3;
System Planning Corp., B-244697.4, June 15, 1992, 92-1 CPD P: 516 at 3-4. 
We will not question an agency*s decision to restrict proposal revisions
when taking corrective action so long as it is reasonable in nature and
remedies the established or suspected procurement impropriety.
    
Under the circumstances here, it was reasonable for the agency to limit
the vendors* submissions to revised price quotes.  As noted above, USDA
determined that its evaluation of CA*s price quote may have been improper,
and that the subsequent source selection decision had not been adequately
documented.  By contrast, the agency found nothing improper in its
evaluation of the vendors* technical quotes and found no merit to CA*s
allegation concerning an unstated minimum requirement for an integrated
multiple platform software product.  The agency also determined that the
cost of conducting the initial technical evaluation of quotes--and
presumably, the approximate cost for conducting a second technical
evaluation of quotes--was more than $42,000.  Contracting Officer*s
Statement, June 18, 2003, at 1; AR, Tab F, TET Leader Statement, June 20,
2003, at 2-3.  In our view, USDA*s limited request for price information
from each vendor was a reasonable way to remedy the suspected procurement
impropriety while not affecting other portions of vendors* quotes and the
evaluation thereof.  This approach has the added benefit of reducing
further cost and delay in the procurement.  We therefore conclude that the
agency acted within its discretion in limiting the revisions vendors may
make to their quotes.
    
CA also alleges that the agency must allow vendors to submit revised
technical quotes because amendment No. 1 to the RFQ did more than simply
require vendors to clarify price quotes by submitting prices on
standardized pricing templates.  The protester argues that the RFQ
amendment here also changed basic assumptions of the procurement,
principally the evaluation criteria.   CA contends that since the agency
does not have the discretion to announce in a solicitation that a
particular evaluation scheme will be used and then use another in the
actual evaluation, unless offerors are informed of the change and given
the opportunity to revise their submissions with the new scheme in mind,
the agency must provide vendors with the opportunity to revise their
technical quotes.  We find that the record does not support CA*s argument
here.
    
As set forth above, the initial RFQ established three evaluation factors
in descending order of importance:  price, technical merit, and corporate
experience.  The RFQ informed vendors that price would be considered the
*highest value* factor once the baseline software product functionality
had been confirmed.  RFQ at 16.  Award was to be made to the responsible
vendor whose quote conformed to the solicitation and provided the overall
best value to the agency, based on consideration of all factors.  RFQ
amendment No. 1 again established price, technical merit, and corporate
experience, in descending order of importance, as the evaluation criteria
upon which the award decision would be made.  The amended solicitation
also stated that while price is the highest value factor, *[technical
merit] and [corporate experience] are important factors for the
selection.  Nothing in the Government*s selection criteria indicates
[price] is the overriding factor for the decision.  When technical merit
and corporate experience are combined they are more important than
price.*  RFQ amend. No. 1, at 5.
    
While CA argues that RFQ amendment No. 1 changes the evaluation criteria
by displacing price as the most important evaluation factor, we find the
revised solicitation merely clarifies the preexisting relative importance
of price and each of the nonprice factors.  As the protester correctly
recognizes, the original solicitation does not specify the relative
importance of price and nonprice factors.  While price was certainly the
highest value factor, nothing in the original RFQ established its primacy
over all other factors when combined.  Hence, while the initial
solicitation described price as the *highest value* factor, it nonetheless
would be consistent with that description for price to be less important
than the technical merit and corporate experience factors when combined
(e.g., 40 percent for price, 35 percent for technical merit, and 25
percent for corporate experience).  As the relevant language in RFQ
amendment No. 1 (i.e., *when technical merit and corporate experience are
combined, they are more important than price*) thus does not contradict
any language in the original solicitation, we find that it merely
clarifies and does not change the evaluation scheme upon which vendors
submitted their original quotes.  Additionally, we note that CA has in no
way shown that the change in the evaluation scheme it asserts was
accomplished by amendment No. 1 would materially affect its technical
quote.  In this regard, CA states only that the alleged change *might lead
offerors to consider a change* in technical approach.  Protester*s
Comments, July 3, 2003, at 17.  This statement is insufficient to show any
prejudice from the agency*s allegedly improper decision not to allow
revisions to the technical quotes.  See McDonald-Bradley, B-270126, Feb.
8, 1996, 96-1 CPD P: 54 at 3 (prejudice is an essential element of every
viable protest); see also Statistica, Inc. v. Christopher,
102 F.3d 1577, 1581 (Fed. Cir. 1996).
    
Lastly, CA contends that the agency is required to allow the protester to
submit a revised technical quote based on our decision in KPMG Consulting
LLP, B-290716,
B-290716.2, Sept. 23, 2002, 2002 CPD P: 196.  In KPMG, a competitive
procurement under the FSS program, we held that where the RFQ does not
contain a late quotations clause, the contracting agency may consider
quotations or quotation modifications received after the date established
in the solicitation, so long as the award process has not begun and other
offerors would not be prejudiced.  Citing KPMG, CA argues that the agency
here must accept revised technical quotations because, apparently, they
are in CA*s view analogous to the late quotation involved in that case. 
KPMG simply does not stand for that proposition.  KPMG holds that an
agency may consider late quotations under certain circumstances, so long
as the award process has not begun and other offerors would not be
prejudiced*not that an agency must under all circumstances and at any time
before award accept any quotation revisions offerors may choose to submit.
    
In sum, we find the agency*s corrective action taken in response to CA*s
initial protest reasonably limited the vendors* submissions to revised
price quotes.
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    
    

   ------------------------

   [1] The RFQ required vendors to provide a description of all services to
be provided at no cost with the purchase of the software product(s).  RFQ
at 16.  Although CA offered to provide [DELETED].  The contracting officer
then [DELETED] in the agency*s evaluation of the vendor*s price.
[2] The agency specified use of standardized templates so that vendors*
prices would be submitted in a uniform and consistent manner, thereby
permitting the agency to conduct an *apples-to-apples* price analysis. 
Contracting Officer*s Statement,
June 4, 2003, at 2.
[3] Specifically, CA asked, *[s]ince the original date of response, if an
offeror*s offering capability has been improved by the availability of new
versions of the offered software, can vendors submit revised technical
responses?*  AR, Tab H, CA Questions, May 19, 2003, at 1.
[4] USDA asserts that its evaluation of vendors* technical quotes did not
employ an unstated minimum requirement for an integrated multiple platform
software solution, but that the TET reasonably awarded a higher technical
score to vendors who did propose an integrated software product.
[5] As a preliminary matter, we note that where, as here, an agency
solicits FSS vendor responses and provides for a technical evaluation and
price/technical tradeoff--that is, uses an approach that is like a
competition in a negotiated procurement, our Office will review the
agency*s actions, if challenged pursuant to our bid protest regulations,
to ensure that the evaluation was reasonable and consistent with the terms
of the solicitation.  COMARK Fed. Sys., B-278343, B-278343.2, Jan. 20,
1998,
98-1 CPD P: 34 at 4-5.  To satisfy its obligation to treat vendors fairly,
the agency should in some fashion inform vendors of its essential
requirements, so that a fair and intelligent competition can be achieved. 
Garner Multimedia, Inc., B-291651, Feb. 11, 2003, 2003 CPD P: 35 at 3;
Draeger Safety, Inc., B-285366, B-285366.2, Aug. 23, 2000, 2000 CPD P: 139
at 4; see Federal Acquisition Regulation (FAR) S: 1.102-2(c)(3).
[6] While the provisions of FAR Part 15, which govern contracting by
negotiation, do not directly apply to competitive procurements under the
FSS program, we analyze the protester*s contention by the standards
applied to negotiated procurements.  OSI Collection Servs., Inc.; C.B.
Accounts, Inc., B-286597.3 et al., June 12, 2001, 2001 CPD P: 103 at 4-5.
[7] The agency discretion to limit the revisions offerors may make to
their proposals exists notwithstanding that, generally, as the protester
argues here, offerors in response to discussions may revise any aspect of
their proposals as they see fit--including portions of their proposals
which were not the subject of discussions.  See Rel-Tek Sys. & Design,
Inc.--Modification of Remedy, B-280463.7, July 1, 1999, 99-2 CPD P: 1 at
3; FAR S: 15.307(b).